Application to reopen the appeal of TERRY RODRIGUEZ, on behalf of her child, from action of the Board of Education of the East Ramapo Central School District regarding remote instruction.

Decision No. 18,351

(November 7, 2023)

Honeywell Law Firm, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq, of counsel

ROSA., Commissioner.--Petitioner seeks to reopen Appeal of Rodriguez (63 Ed Dept Rep, Decision No. 18,305), which dismissed petitioner’s appeal from a determination of the Board of Education of the East Ramapo Central School District (“respondent”) as moot.  The application must be denied.

The underlying appeal arose from respondent’s denial of petitioner’s request to deliver remote instruction for her child during the second half of the 2021-2022 school year.[1]  While the appeal was pending, petitioner voluntarily withdrew the student from respondent’s district and enrolled her in a nonpublic school.  In a decision dated July 17, 2023, I dismissed the appeal as moot, reasoning that “[a]ny determination at this juncture as to whether the student [was] entitled to remote instruction from respondent’s district ... [was] ... academic.”  In the instant application, petitioner alleges that the prior appeal was not moot because the student reenrolled in respondent’s district in spring 2023. 

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner.  The Commissioner will not grant an application to reopen absent a showing that:  (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]).  An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Here, petitioner has not met the standard for reopening the underlying appeal.  Although petitioner has provided new information establishing that the student returned to the district by the time of the prior decision, her request for relief—that the student receive remote instruction from respondent during “the COVID pandemic”—remains moot.  As noted in the prior appeal, “the federal COVID-19 Public Health Emergency expired on May 11, 2023.”  As further evidence that this appeal is moot, respondent indicates in its response to petitioner’s application that it no longer offers remote instruction.  As such, petitioner has failed to establish any facts suggesting that the underlying appeal was not, in fact, moot.  Therefore, petitioner has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR 276.8.

THE APPLICATION IS DENIED.

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